This cause was before the Court at the December Term, 1857, (5th Jones' Law, 16,) in a more complicated form. The leading features of it, as now presented are, that, in December, 1853, one McKay cut 13,000 boxes into the pine trees in question, for the purpose of conducting the business of procuring turpentine, which in January following, he leased to the plaintiffs and put them in possession. Afterwards, to wit, on the 7th of January, 1854, Alexander Morrison obtained a grant from the State for the land on which these trees were situated, under which the defendants entered on the 4th of March following, and dipped the turpentine out of the boxes and converted it to their own use. This grant was offered by the defendants in answer to the action, but was rejected by his Honor; for which the defendants excepted. *Page 17
Verdict and judgment for the plaintiffs. Appeal by the defendants. The defendants offered to show title, by a grant to them, dated 7th January, 1854. His Honor rejected the evidence as irrelevant, being of opinion that title in the defendants would not defeat the action. This question is presented: A, claiming under a lease from a stranger, takes possession of land, and continues in possession, cultivating turpentine trees, which had been previously boxed; after the turpentine had run into the boxes, B, who is the owner of the land, enters and dips the turpentine out of the boxes, and converts it to his own use, can A maintain trover against B for the conversion of the turpentine?
The question is settled by Brothers v. Hurdle, 10 Ire. Rep. 490; Branchv. Morrison, 5 Jones' Rep. 16.
In the first it is decided, that where one, who had no title, took possession of land, cultivated a crop, pulled and stacked the fodder, and gathered the peas, and put them into a crib on the premises, he might recover in trover for the fodder and peas against the true owner, who, being put in possession under a recovery in ejectment, converted the fodder and peas which were on the premises at the time he regained the possession.
The distinction is this: A tree, or other thing, when severed from the land, becomes a chattel. If the owner of the land be in possession, actually, or by construction, the chattel is instantly his property, and he may take it, or may presently bring trover against any one who converts it. But if the owner of the land be not in possession and his estate isdivested by an adverse possession, then the chattel does not become his property, but is the property of the party in possession who severed it, and who may maintain trover for its conversion *Page 18 against the true owner who had, at the time, a mere right, and not an estate in the land.
In the second case it is decided, that turpentine, which has run into the boxes, is thereby severed from the land and made a chattel, and that the party who was in possession and cultivated the trees, might maintain trover, notwithstanding the title was shown to be in the heirs of one Blount; adopting the conclusion and the reasoning of Brothers v. Hurdle, supra.
As the case is now presented, the title of the heirs of Blount is not shown. So, it is to be taken that the title is in the defendants by force of their grant; but the plaintiffs were in the adverse possession, whereby the estate of the defendants was divested and turned into a mere right; consequently, the turpentine, when severed from the land by being made to run into the boxes before the entry of the defendants, did not become their property, but was the property of the plaintiffs, according to the principle above announced.
This conclusion assumes that one, who cultivates turpentine trees, thereby acquires the possession in such a manner as to hold adversely, and divest the estate of the owner; the entering for the purposes of such cultivation, not being treated as several distinct trespasses, leaving the owner in possession, but as a continuing adverse possession, and an eviction of the owner. That such is the legal effect of the cultivation of turpentine, is fully settled. With color of title, it would ripen by seven years continuance. It prevents the owner from being able to convey the estate which is thus divested. And the owner cannot maintain trespass, or any action, except ejectment, until he regains the possession and gets the benefit of the post liminii, which enables him to maintain trespass for the mesne profits; but does not enable him to maintain trover for a thing which had been severed from the land and become a chattel. There is no error.
PER CURIAM, Judgment affirmed. *Page 19